Presenting a live 90 ‐ minute webinar with interactive Q&A Ethical Issues When an Attorney Leaves the Firm Managing Client Communications, Client Files, Work Product and Conflicts of Interest TUESDAY, OCTOBER 4, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f William P . S chuman, Partner, McDermott Will & Emery LLP , Chicago pecial Counsel, Thomason Hendrix Brian S . Faughnan, S Harvey Johnson & Mitchell , Memphis, Tenn. Geri S . Krauss, Krauss PLLC , White Plains, N.Y . The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Ethical Issues When an Attorney Leaves the Firm Managing Client Communications, Client Files, Work Product and Conflicts of Interest i Presented By: y William P. Schuman, P.C. McDermott Will & Emery LLP Brian S. Faughnan Thomason Hendrix Harvey Johnson & Mitchell Geri S. Krauss Krauss PLLC
Priority One The Client’s Best Interests • Attorneys change firms on a regular basis, and whether it is y g g , agreeable or disagreeable, the primary focus must always be the client’s best interests. • Both the departing attorney and the firm have ethical B th th d ti tt d th fi h thi l responsibilities to the client to assure that their representation is not adversely affected by the attorney’s departure. • Dowd & Dowd, Ltd. v. Gleason , 693 N.E.2d 358 (Ill. 1998) – The fact that multiple clients were deposed as part of this lawsuit speaks volumes to the damage to client relations that lawsuit speaks volumes to the damage to client relations that can occur 6
The Problems The Problems • Tension between fiduciary duties to your Tension between fiduciary duties to your clients vs. fiduciary duties to your partners and your firm your firm • Clients win, but it is close • Your personal interests come last • Your personal interests come last • Real world departing attorney issues often do not fit easily within the guidance offered by t fit il ithi th id ff d b cases and ethics opinions • Guidance is conflicting from state to state 7
8 I. Notice and Communication
I. Notice and Communication • A Notice by the departing attorney to the A. Notice by the departing attorney to the firm; • B Notice by the departing attorney to the • B. Notice by the departing attorney to the client; • C. Notice by the law firm to the clients; C N i b h l fi h li • D. Post-Notice communications with clients; • E. Attorney solicitation of clients; • F Attorney solicitation of employees F. Attorney solicitation of employees. 9
A Good Starting Point A Good Starting Point • ABA Formal Opinion 99-414 (1999) ABA Formal Opinion 99 414 (1999) – A departing lawyer has an ethical obligation along with responsible members of the law firm who remain at the old firm to assure that clients are informed that the lawyer is leaving the firm. • This can be accomplished by the departing lawyer alone, the s ca be acco p s ed by t e depa t g awye a o e, t e responsible members of the firm, or the lawyer and old firm members jointly • Because the client has the ultimate right to select counsel of their g choice, information concerning the lawyer’s departure and where they are going is critical in allowing client to make an informed decision 10
A Good Starting Point A Good Starting Point • ABA Formal Opinion 99-414 (1999) p ( ) – Model Rule 1.16(d) - Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other retain papers relating to the client to the extent permitted by other law. – A departing lawyer must, under Model Rule 1.16(d) take steps, to the extent practicable, to protect the current clients’ interests. the extent practicable, to protect the current clients interests. – The responsible members of the former firm must also comply with Rule 1.16(d) respecting all clients who select the departing lawyer to represent them p 11
A Good Starting Point A Good Starting Point • ABA Formal Opinion 99-414 (1999) p ( ) – Any initial in-person or written notice informing clients of the departing lawyer’s new affiliation that is sent before the lawyer’s resigning from the firm generally should conform to the following: • the notice should be limited to clients whose active matters the lawyer has direct professional responsibility at the time of the notice (i.e., the current clients); • the departing lawyer should not urge the client to sever its • the departing lawyer should not urge the client to sever its relationship with the firm, but may indicate the lawyer’s willingness and ability to continue her responsibility for the matters upon which she currently is working; p y g • the departing lawyer must make clear that the client has the ultimate right to decide who will complete or continue the matters; and • the departing lawyer must not disparage the lawyer’s former firm. 12
A Good Starting Point A Good Starting Point • ABA Formal Opinion 99-414 (1999) ABA Formal Opinion 99-414 (1999) – The departing lawyer must continue to make clear in discussions with the client that the client has the in discussions with the client that the client has the right to choose whether the old firm, the departing lawyer, or some other lawyer will continue the y y representation. 13
A Good Starting Point A Good Starting Point • ABA Formal Opinion 99-414 (1999) ABA Formal Opinion 99-414 (1999) – A lawyer moving to a new firm also may wish to take with her files and her documents such as take with her files and her documents such as research memoranda, pleadings, and forms. To the extent that these documents were prepared by the p p y lawyer and are considered the lawyer’s property or are in the public domain, she may take copies with her. 14
A. Notice by the Departing Attorney to the Firm i • The preference in many jurisdictions is that the firm p y j is to be noticed first • “It would be improper for the departing attorney to announce to clients of the firm his or her pending announce to clients of the firm, his or her pending departure, before the law firm is told.” Supreme Court of Ohio Board of Commissioners on Grievances and Discipline Advisory Opinion 98 5 Discipline Advisory. Opinion 98-5 • The general rule in New York, when an attorney departs from an existing practice, he should give notice to the clients after notice is given to the former firm. Graubard Mollen Dannett & Horowitz , 86 N.Y.2d 112, 120 (N.Y. 1995). , ( ) 15
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